The Law and the Rights of the Employee

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Discipline and Grievances at Work
Week 11
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Overview of Lecture

• Discipline and Grievance Defined
• The Need for Discipline and Grievance Procedures
• ACAS Code of Practice concerning Discipline
  Procedures
• The Disciplinary Procedure General Guidelines
• The Grievance Procedure General Guidelines
• Summary

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Discipline Defined

• Action instigated by management against an
  employee who fails to meet reasonable and
  legitimate expectations in terms of performance,
  conduct or adherence to rules
• (Pilbeam and Corbridge, 2002, 415)
• (Cited by Lewis et al 2003)

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Grievance Defined

• A complaint which has been formally presented to
  a management representative or union official
• (Pigors and Myers, 1977) (cited by Foot and Hook,
  2005, 444))
• A complaint by an employee that the behaviour of
  management or that of an employee has been unfair
  and unjust in its application to him/her
• (Gennard and Judge, 2005, 300)

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Need for Disciplinary Procedures (1)

• To ensure employees know what is expected of them
  in terms of standards of performance or conduct
• To identify obstacles to individuals achieving
  the required standards and take appropriate
  action
• To provide an opportunity to agree suitable goals
  and timescales for improvement in an individuals
  performance or conduct
• As a point of reference for an employment
  tribunal should someone make a complaint about
  the way they have been dismissed
• (CIPD, 2006)

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Need for Disciplinary Procedures (2)

• According to (Leopold 2002) discipline should be
  viewed as a means of improving performance and
  not as a form of punishment
• Gennard and Judge (2005) believe a fair and
  effective disciplinary procedure is one that
  concentrates on improving or changing behaviour
  and not one that relies on the principle of
  punishment

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Rules

• In addition to developing formal disciplinary
  procedures, organisations need to establish rules
• Rules set standards. A good disciplinary
  procedure helps employees keep the rules
• Rules will normally cover issues such as absence,
  timekeeping and holiday arrangements, health and
  safety, misconduct, sub-standard performance,
  discrimination, bullying and harassment
• Rules and procedures should be clear and
  preferably in writing
• Rules should be read and understood by all
  employees (ACAS, 2005)

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Need for Grievance Procedures

• To provide individuals with a course of action
  should they have a complaint
• To provide points of contact and timescales to
  resolve issues of concern
• (CIPD, 2006)

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Statutory Discipline and Grievance Procedures

• From 1 October 2004 the Employment Act 2002 made
  it a legal requirement for all organisations to
  have disciplinary and grievance procedures in
  place
• Main Features
• 3 step statutory disciplinary, dismissal and
  grievance procedures
• Failure to follow the statutory procedures will
  render a dismissal automatically unfair
• (CIPD, 2006)

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ACAS Code of Practice Concerning Disciplinary
Procedures (1)

• According to ACAS (2004) Good disciplinary
  procedures should
• Be in writing
• Specify to whom they apply
• Be non-discriminatory
• Provide for matters to be dealt with without
  undue delay
• Provide for proceedings, witness statements and
  records to be kept confidential
• Indicate the disciplinary actions which may be
  taken
• Specify the levels of management which have the
  authority to take the various forms of
  disciplinary action

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ACAS Code of Practice Concerning Disciplinary
Procedures (2)

• Provide for workers to be informed of complaints
  against them and where possible all relevant
  evidence before any hearing
• Provide workers with an opportunity to state
  their case before a decision is reached
• Provide for workers to be accompanied
• Ensure that, except for gross misconduct, no
  worker is dismissed for a first breach of
  discipline
• Ensure that disciplinary action is not taken
  until the case has been carefully investigated
• Ensure that workers are given an explanation for
  any penalty imposed
• Provide a right of appeal normally to a more
  senior manager and specify the procedure to be
  followed

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ACAS Code of Practice Concerning Disciplinary
Procedures (3)

• ACAS also states that there are also further
  principles for reasonable behaviour that should
  be followed.
• These include
• Using procedures to encourage better standards
  of work, rather than as a punishment
• Ensure that the workers know of the case against
  them and has chance to give their side of the
  story before a decision is reached
• Ensure that workers are accompanied by a
  colleague or TU official at the hearing

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ACAS Code of Practice Concerning Disciplinary
Procedures (4)

• Make sure that all facts are established before
  any disciplinary action is taken and any action
  is reasonable in the unique circumstances of that
  case
• Ensure that no one is dismissed for a first
  offence, unless for gross misconduct
• Give the workers a written explanation for
  whatever disciplinary action is taken and ensure
  that they know what improvement is required
• Provide an opportunity for appeal
• Deal with issues as thoroughly and promptly as
  possible
• Act consistently
• (cited by Foot and Hook, 2005, pp431-432

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Pause for Thought

• Consider any organisation that you know
• reasonably well, perhaps one where you have
• worked yourself.
• 1. What disciplinary rules did the organisation
  have?
• 2. How were these disciplinary rules made known
  to you?
• 3. What were considered to be disciplinary
  offences?
• 4. Were there any offences that were regarded as
  particularly serious in this organisation and
  that constituted gross misconduct? What were
  they?
• 5. Compare your list with the list made by
  someone who has experience in a different
  organisation. Can you find reasons for the
  differences and the similarities?

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The Disciplinary Procedure General Guidelines

• (Foot and Hook, 2005)

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The Disciplinary Procedure General Guidelines

• Include
• The Purpose and scope of the procedure
• The Principles that underlie the procedure
• The informal actions
• The formal actions
• The nature of gross misconduct
• The appeals procedure
• (ACAS, 2002 cited by Foot and Hook, 2005)

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1. The Purpose of the Procedure

• Explain why a procedure is needed
• Outline the aim / e.g. to help all employees to
  achieve high standards of conduct, attendance and
  job performance
• Indicate what action should be taken if there is
  a breach of disciplinary rules
• Emphasise the formal procedure will only be
  initiated if informal discussions cannot change
  behaviour / improve performance

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2. The Principles that Underlie the Procedure (1)

• This section is likely to include a list of the
  several essential principles that ACAS outline
  for a disciplinary procedure
• The procedure is to fully investigate the
  offence..
• At every stage, the individual should be advised
  of the type of complaint
• To ensure fairness, the employee will have an
  opportunity to state his/her case and can be
  represented by a TU rep/friend

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2. The Principles that Underlie the Procedure (2)

• For a first breach of discipline the individual
  should not be dismissed (unless gross
  misconduct!)
• The employee will have a right of appeal
• The procedure may be implemented at any stage if
  the alleged misconduct justifies this

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3. Informal Actions

• Normally the most appropriate way of dealing with
  alleged minor misconduct/poor performance
• Initially the supervisor should have an informal
  discussion with the employee
• In many organisations disciplinary cases never go
  beyond this stage
• Counselling / Informal advice may resolve the
  problem without initiating the formal
  disciplinary procedure

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4. Formal Actions

• Inform employee of the alleged misconduct in
  writing.
• Arrange a meeting to discuss the situation with
  them.
• Decide whether or not disciplinary action is
  justified.
• If it isnt, inform the worker.
• If it is, decide the form of disciplinary
  action.

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4.1 Formal Actions for Misconduct

• A first written warning stating the nature of the
  misconduct.
• Inform the individual that this is part of the
  formal disciplinary process.
• State the likely consequences of failure to
  improve conduct.
• Inform the individual of the right of appeal.
• Keep record for specified time and then disregard
  it.

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4.2 Formal Action for Unsatisfactory Performance

• Give a written improvement note that states
• the nature of the performance problem
• the required improvement
• the timescale for the required improvement
• a review date
• the support the employer will give to help them
  achieve the required performance
• notification that failure could lead to a final
  written warning and dismissal

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5. The Nature of Gross Misconduct

• The employee should be given an indication of
  what constitutes gross misconduct in the
  disciplinary procedure
• In the case of G.M. employees may be dismissed
  even for a first offence. Egs include
• Theft
• Deliberate damage to company property
• Fraud
• Incapacity to work because of drugs/alcohol
• Physical assault
• Sexual Racial Harassment
• Serious infringement of health and safety rules

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6. Appeals

• The last section of the procedure should indicate
  what the employee should do if s/he is not happy
  with the action taken against him/her
• There should be a clear appeal procedure with
  time limits for the submission of appeals stated
  (ACAS Code of Practice recommends 5 days)
• (Foot and Hook, 2005)

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Keeping Records

• Except in agreed special circumstances, any
  disciplinary action taken should be disregarded
  after a specified period of satisfactory
  conduct/performance
• Normal practice is for different periods for
  different types of warnings. E.g..
• Recorded Oral Warning 6 months
• First Written Warning 1 year
• Final Written Warning 2 years
• (ACAS, 2006)

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Dismissal

• There are 6 permitted reasons for dismissal
• Misconduct
• Incapability
• Breach of statutory regulations
• Redundancy
• Retirement (although age legislation affects
  such!)
• Some other substantial reason
• Employers need to ensure any decision to dismiss
  an employee will be seen as reasonable by an
  employment tribunal (for example compliance
  with disciplinary procedures / proper
  investigation conducted)
• (CIPD, 2006)

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The Grievance Procedure General Guidelines

• (Foot and Hook, 2005)

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The Informal Grievance Procedure

• Individuals should be encouraged to discuss
  day-to-day issues informally with their line
  managers
• Where this is unsuccessful matters should be
  raised formally

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The Grievance Procedure General Guidelines

• Include
• The Purpose and Scope of the procedure
• The Principles that underlie the procedure
• The stages of the procedure itself
• Exceptional Circumstances
• The appeals procedure
• (Foot and Hook, 2005)

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1. The Purpose and Scope of the procedure

• Likely to indicate which employees are covered by
  the procedure
• It should state the aim of the procedure is to
  settle any grievances in a fair manner
• The procedure should be simple to use and rapid
  in operation

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2. The Principles that Underlie the Procedure

• Likely to include some statements concerning the
  employers view on fairness/justice and how such
  will be achieved. E.g.
• All workers have a right to raise a grievance
• Grievances will be investigated within the
  specified time limits
• Employees have the right be accompanied. etc..
• Employees have a right of appeal

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3. The Stages of the Grievance Procedure (1)

• Stage 1
• Raise the grievance, preferably in writing, with
  the immediate supervisor who should reply within
  a specified time limit.
• The worker may have the right to be accompanied.
• If the grievance is about the immediate manager,
  the procedure should allow for this stage to be
  bypassed so that it is raised at the next level
  of management.

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3. The Stages of the Grievance Procedure (2)

• Stage 2
• If it has not been resolved satisfactorily, a
  request should be made in writing to the next
  level of management a more senior manager

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3. The Stages of the Grievance Procedure (3)

• Stage 3
• If it has not been resolved satisfactorily, a
  request should be made in writing to the next
  level of management GM/Director
• Time limits at each stage
• Rights of appeal at each stage
• Records of decisions at each stage should be
  kept.

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Summary

• Disciplinary and grievance procedures have an
  important role to play in an organisation
• Disciplinary procedures should be devised and
  implemented in all organisations to comply with
  the law and maintain appropriate standards of
  conduct/performance
• Grievance procedures should be devised and
  implemented in all organisations to comply with
  the law and address employee dissatisfaction in
  the workplace

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References

• ACAS (2004) Code of Practice Disciplinary and
  Grievance Procedures (www.acas.org.uk)
• ACAS (2006) Advisory Handbook Discipline and
  Grievances at Work (www.acas.org.uk)
• CIPD (2006) Discipline and Grievance Procedures
  Factsheet, (www.cipd.co.uk)
• Foot, M and Hook, C (2005) Introducing Human
  Resource Management, 4th edition, Harlow, Pearson
  Education
• Gennard, J and Judge, G (2005) Employee
  Relations, 4th edition, London, CIPD
• Lewis, P., Thornhill, A. and Saunders, M. (2003)
  Employee Relations, Harlow, Pearson Education

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Revision Questions

• Define the term (s)
• Disciplinary and Grievance
• Why are disciplinary and grievance procedures
  necessary?
• Outline the key features of a Good Disciplinary
  CODE OF PRACTICE